When does election rhetoric go too far? In a recent radio appearance, an advisor to the Donald Trump campaign went beyond the usual mix of insults and declared that Hillary Clinton “should be put in the firing line and shot for treason.”
The remark generated attention and outrage on social media, which can amplify even the most extreme remarks by spreading the message to a much broader audience. This raises the question not only of whether such a position—advocating for the execution of the Democratic presidential nominee—is ill-advised, but also whether it is legal.
While free speech law in this country is famously broad, it is more narrow when it comes to the top elected official. A special section of the U.S. criminal code makes it a felony to threaten to kill or harm the president or vice president. Hillary Clinton is not the president, of course, but if she wins the election in November, the law will immediately extend to her as president-elect.
It’s not one of those laws that sits on the books and is rarely enforced. According to an Atlanticarticle last year, federal agents spend considerable time investigating threats to President Obama that are made on Twitter and Facebook, and they sometimes prosecute those who make them.
So where does the “firing line” comment fit into all of this? According to the Daily Beast, the Secret Service is investigating Al Baldasaro, a former Marine who calls himself Trump’s “veteran adviser.”
It’s unlikely, however, that prosecutors will bring any charges against Baldasaro in the absence of further evidence.
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According to Ken Paulson, who heads the First Amendment Center at Vanderbilt University, the law about threatening the president sets a lower standard for prosecution than for ordinary threats. For instance, it does not require the person have the intent to carry out the threat or that the target of the threat know about it.
But that does not mean comments like Baldasaro’s could or should be punished—even if Clinton was the president, said Paulson.
“There’s a different standard when it involves the most important job in country,” he said. “But we have to be very careful not to limit colorful speech directed at our political process. It’s the heart of our democracy, and we’ve always had loose talk and loose cannons.”
The Supreme Court, meanwhile, has also cautioned against applying the presidential threats law too broadly. In a 1969 decision, it reversed the conviction of a draft protestor who said at a rally, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”
According to the court, debates on public issues will include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” This, then, is how a court would likely Baldasaro’s remark—vehement and unpleasant, but not illegal.
A spokesperson, meanwhile, told BuzzFeed that Trump and the campaign are “incredibly grateful” for Baldasaro’s support but do not agree Clinton should be executed.